October 18, 195’1

Hon. JohnR. Creighton County Attorney Opinion No. V-1325 Palo Pinto county Re: Applicability ofS.B. 362, Palo Pinto, Texas Acts 52nd Leg., R~.S. 1951, ch. 264, p. 424. to Palo Dear Sir: Pinto County.

You have requested an opinion as to whether the CommissionersD Court of Palo Pinto County may elect to compensate constables and deputies under the provisions of Senate Bill 362, Acts 52nd Leg., R.S. 1951, ch. 264, p. 424.

Section 1ofSenate Bill 362 authorizes county commissioners’ **courts** to supply or pay for transportation of constables and deputy constables under one of several optional plans outlined inthe statute. Subdivision (e) ofSection 1reads:

“This Act shall not apply to counties having a population of less than twenty thousand (20,000) people :”
Your letter requesting an opinion contains the following statement:“According tothe preliminary report ofthe 1950 census, Palo Pinto County has apopulation of slightly over 18,000 people. Estimates of reliable civic organizations, Chambers of Commerce, etc., place the present population atwell over 20,000 people.“

. You point out inyour letter that Senate Bill 362 does not state the method by which population is tobe determined, such as “according to the last Federal census.”

Chapter 1of Title 61(Article,s 3882 et seq,), R.C~.S. 1925, provides for the compensation and‘expenses ofdistrict. county, and precinct officers. Article 3889, which is a’part ofthis chapter, reads:

“The preceding Federal census shall govern as to population in all cases under any provision ofthis chapter.”Hon. John R. Creighton. page 2 (V-1325)

While the Legislature has not expressly made Senate Bill 362 a part of Chapter 1of Title 61, this statute deals with compensation and expenses ofprecinct officers, and we think itwas the intention ofthe Legislature that itbe construed in conjunction with the articles ofthis chapter.

We note that Senate Bill 362 has been unofficially codified as part of Title 120ofthe Revised Civil Statutes, r.elating to Sheriffs and Constables. However, anunofficial codification has no effect on the operation ofan act ofthe Legislature and may be disregar~ded. ,Att’y Gen. Letter Op., July 15. 1949, addressed to Hon. Jesse G. Foster.
Informer years the Legislature used various standards for determining population classifications for compensating county and precinct officers. Sometimes the vote inthe last preceding pr~esidential or other election was used. See, for example, Acts 25th Leg., S.S. 1897, ch. 5. p. 5, sets. 7, 10. and 17. However, these standards, which were dependent onmany contingent factors and were therefore not satisfactory, gave way to the,use ofthe preceding Federal census as the customary standard., In 1913, the Legislature amended Article 3887. R.C.S. 1911,so as to provide that “the last United States Census shall govern as to population inall cases” in determining the compensation ofthese officers. Since that time, this standard has prevailed almost exclusively. Occasionally the Legislature has varied this pattern in exceptional cases. but in those: instance,s ithas specified the standard or method by which population is tobe ascertained. See, for example, Article 326h. V.C.S.

Senate Bill 362 does not grant authority to any person or body to determine the population ofa county, nor does it set out the sources from which information as to population is tobe obtained. Inview oflegislative practice. considered along with~Article 3889, supra, we think the failur,e of the Legislature tostate the method by EliIEh population is to be determined is more indicative oftan intention that the preceding Federal census is to control~than that some other method is tobe used. InBrooke v. Dulaney, 100 Tex. 86, 93 S.N. 997 (1906). the Supreme Court of Texas held that since the Constitution had provided that population for certain purposes should be determined by the preceding Federal census, it contemplated that population for a similar purpose under another section ofthe Constitution should be determined by the same method, although it did not expressly so state. The same reasoning is appropriate here. We are ofthe opinion; therefore, that the preceding Federal census is tobe used indetermining the applicability ofthe provisions of Senate Bill 362.Hon. John R. Creighton, page 3 (V-1325)

According to the final report ofthe 1950 Federal census, the population of~Palo Pinto County is 17,154. This census is the correct measure ofpopulation to determine the applicability of Senate Bill 362 toyour county. Att’y Gen. Op. V-1175 (1951). Since Palo Pinto County has apopulation of less than twenty thousand people, Senate Bill 362 does not apply to it.

SUMMARY The Commissioners’ Court of Palo Pinto County may not elect to compensate constables and their deputies under Senate Bill 362, Acts 52nd Leg;. R.S. 1951. ch. 2, p. 424, since this county has a population of less than twenty thousand people according to the final report ofthe 1950 Federal census. Yours very truly,
APPROVED:
J. C. Davis, Jr. Countv Affairs Division PRICE DANIEL Attorney General

Jesse P. L&on, Jr. BY Reviewing Assistant Ro
Everett Hutchinson Executive Assistant Assistant

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